P. v. Lewis
Filed 4/28/11 P. v. Lewis CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL LEWIS, Defendant and Appellant. | B224616 (Los Angeles County Super. Ct. No. BA365694) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara R. Johnson, Judge. Affirmed with directions.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Assistant Attorney General, Pamela C. Hamanaka, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Nathaniel Lewis appeals from sentencing orders entered after he pled no contest pursuant to a plea agreement. He challenges two conditions of probation on the ground that the minutes misstate the trial court’s pronouncement. Respondent agrees that the minutes are in conflict with the controlling trial court’s pronouncement.
Defendant challenges a third condition -- that he support his dependents -- on the ground that it was unrelated to the crime of selling drugs. We reject defendant’s challenge to the third condition, and affirm the judgment with directions.
BACKGROUND
Preliminary hearing testimony showed that defendant attempted to sell methamphetamine to an undercover police officer. He was charged with one count of violating Health and Safety Code section 11379, subdivision (a), selling, transporting, or furnishing a controlled substance. In addition, the information alleged that defendant had suffered two prior felony convictions for which he did not remain free of prison custody for a period of five years before committing the current offense, for purposes of the sentence enhancement provision of Penal Code section 667.5, subdivision (b).[1] The same prior convictions were alleged for purposes of the “Three Strikes” law (§§ 1170.12, subds. (a) - (d) & 667, subds. (b) - (i)).
On March 15, 2010, pursuant to a plea bargain, defendant pled no contest to the charge, and admitted his prior convictions. According to the terms of the plea agreement, the trial court struck the prior convictions and suspended imposition of sentence. Defendant was placed on three years’ formal probation on the condition that he serve 365 days in county jail, with credit for 192 days. Among other conditions of probation, the court ordered defendant to stay away from places where known users, buyers, or sellers of unlawful controlled substances congregate, except for an authorized treatment program, and to support his dependents as directed by the probation officer. The court also prohibited the possession or use of concealable deadly or dangerous weapons. Defendant filed a timely notice of appeal.
DISCUSSION
1. Clerical Errors
Defendant contends that the minute order should be corrected, because it does not accurately reflect the trial court’s pronouncement of two of the conditions of probation. Respondent agrees that the trial court should be directed to correct its minutes.
One of the conditions of probation, as pronounced by the trial court, was not to “associate with persons known by you to be controlled substance users or sellers except in an authorized drug treatment program.” In preparing the minutes, the clerk omitted the words, “known by you.”
Another condition was not to “own, use, threaten to use, possess, buy, or sell any deadly or dangerous weapons including firearms or any other concealable weapons.” The minutes state that defendant must “not own, use or possess any dangerous or deadly weapons, including any firearms, knives or other concealable weapons.”
Courts may correct clerical errors at any time, and appellate courts may order the sentencing court to correct its records to reflect its pronouncement of the judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We do so, and agree with respondent that it is unnecessary to reach defendant’s contention that the conditions would be invalid if they had been imposed as worded in the minutes.
2. Order to Support Dependents Was a Valid Condition
Defendant contends that an order to support dependents as directed by the probation officer must be stricken, claiming that it is not reasonably related to his crime. He suggests that such a condition is appropriate only in domestic violence cases. Defendant refers to no authority for his suggestion. In fact, section 1203.1, subdivision (d), expressly authorizes the court “[i]n all cases of probation [to] require as a condition of probation that the probationer go to work and earn money for the support of his or her dependents . . . .” (Italics added.) Such a condition has been found to be valid and appropriate in a narcotics trafficking case. (See People v. Caron (1981) 115 Cal.App.3d 236, 244-245.) Like the other conditions imposed here, it is typically imposed in similar cases, and is not unreasonable. (Id. at p. 246.)
A condition of probation is not invalid simply because it is not directly related to the crime, as defendant contends. A condition of probation will be upheld unless it “‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) Because the three criteria enumerated in Lent are in the conjunctive, all three prongs must be present in order for a condition to be held invalid. (People v. Olguin (2008) 45 Cal.4th 375, 379-380.) Thus, “even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]” (Id. at p. 380.)
Probation conditions “must serve a purpose specified in section 1203.1, which has as its major goal the rehabilitation of the criminal. [Citations.]” (People v. Fritchey (1992) 2 Cal.App.4th 829, 836.) It follows that the specified conditions in section 1203.1 are meant to foster rehabilitation, and that the Legislature deemed supporting dependents an appropriate way to foster rehabilitation. In addition, by enacting section 1203.1, the Legislature has vested the trial courts with broad discretion when granting probation to impose conditions to foster rehabilitation and to protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; see § 1203.1, subd. (j).) We agree with respondent that it is a matter of common sense that requiring defendant to become a contributing member of society by supporting his dependents promotes rehabilitation.
We conclude that the condition that defendant support his dependents is authorized by statute and thus valid. However, defendant contends that the trial court acted arbitrarily and capriciously in applying it to him, because it abdicated its discretion to the probation officer, and because there was no evidence in the record that he had dependents.
Probation conditions must be given a reasonable and practical construction. (People v. Lopez (1998) 66 Cal.App.4th 615, 630.) So long as they do not implicate a constitutional right (cf. People v. O’Neil (2008) 165 Cal.App.4th 1351, 1357), reasonable probation conditions may include implied terms. (See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117.) Probation terms giving discretion to probation officers cannot be read to authorize them to act irrationally or capriciously. (People v. Olguin, supra, 45 Cal.4th at p. 383.) Thus, a requirement to support nonexistent dependents cannot be read into the condition, nor can a requirement that defendant contribute support beyond his means, and it is unnecessary to express such limitations. We conclude that the trial court did not act arbitrarily or capriciously.
DISPOSITION
The judgment is affirmed, and the cause is remanded to the superior court with directions to issue a minute order that accurately reflects the sentence imposed by the trial court, as described in the reporter’s transcript.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
___________________________, J.
CHAVEZ
We concur:
_____________________________, Acting P. J.
DOI TODD
_____________________________, J.
ASHMANN-GERST
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